State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Lieberman:

I have received a copy of your letter of February 7 addressed
to Manuel Menendez, Jr., Counsel to the New York State Housing
Finance Agency, in which you requested copies of reports prepared
by the Agency following its investigation of a complaint made
against you by a named former temporary secretary. At the end of
the letter, you wrote that a copy was being sent to this office for
the purpose of seeking an advisory opinion.

In my view, it is likely that the records in question should
be made available to you, except to the extent that disclosure
would constitute an unwarranted invasion of the privacy of a person
other than yourself or that the information is exempted from
disclosure by statute. In this regard, I offer the following
comments.

You referred to a claim by the agency that it promised
confidentiality to the complainant. Based on several judicial
decisions, an assertion or promise of confidentiality, unless it is
based upon a statute, is generally meaningless. When
confidentiality is conferred by a statute, an act of the State
Legislature or Congress, records fall outside the scope of rights
of access pursuant to §87(2)(a) of the Freedom of Information
Law,
which states that an agency may withhold records that "are
specifically exempted from disclosure by state or federal statute".
If there is no statute upon which an agency can rely to
characterize records as "confidential" or "exempted
from
disclosure", the records are subject to whatever rights of access
exist under the Freedom of Information Law [see Doolan v.BOCES, 48
NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d
557 (1984); Gannett News Service, Inc. v. State Office of
Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such,
an assertion of confidentiality, without more, would not in my view
serve to enable an agency to withhold a record.

The primary source of your rights of access to the records in
question is the Personal Privacy Protection Law. In general, that
statute requires that state agencies disclose records about data
subjects to those persons. A "data subject" is "any
natural person
about whom personal information has been collected by an agency"
[Personal Privacy Protection Law, §92(3)]. "Personal information"
is defined to mean "any information concerning a data subject
which, because of name, number, symbol, mark or other identifier,
can be used to identify that data subject" [§92(7)]. For
purposes
of the Personal Privacy Protection Law, the term "record" is
defined to mean "any item, collection or grouping of personal
information about a data subject which is maintained and is
retrievable by use of the name or other identifier of the data
subject" [§92(9)].

Under §95 of the Personal Privacy Protection Law, a data
subject, a person such as yourself in the context of your request,
has the right to obtain from a state agency records pertaining to
him or her, unless the records sought fall within the scope of
exceptions appearing in subdivisions (5), (6) or (7) of that
section or §96, which would deal with the privacy of others.

Of potential relevance to the matter is subdivision (6)(d) of
§95, which states that rights of access by a data subject to not
extend to:

"attorney's work product or material prepared
for litigation before judicial, quasi-judicial
or administrative tribunals, as described in
subdivision (c) and (d) of section three
thousand one hundred one of the civil practice
law and rules, except pursuant to statute,
subpoena, search warrant or other court
ordered disclosure."

The references to the work product of an attorney and material
prepared for litigation are based on subdivisions (c) and (d) §3101
of the Civil Practice Law and Rules.

While I am unaware of the specific nature of the records
sought, as you know, §3101 pertains disclosure in a context related
to litigation, and subdivision (a) reflects the general principle
that "[t]here shall be full disclosure of all matter material
and
necessary in the prosecution or defense of an action..." The
Advisory Committee Notes pertaining to §3101 state that the intent
is "to facilitate disclosure before trial of the facts bearing
on
a case while limiting the possibilities of abuse." The prevention
of "abuse" is considered in the remaining provisions of §3101,
which describe narrow limitations on disclosure. It is also noted
that it has been determined judicially that if records are prepared
for multiple purposes, one of which includes eventual use in
litigation, §3101(d) does not serve as a basis for withholding
records; only when records are prepared solely for litigation can
§3101(d) be properly asserted to deny access to records [see e.g.,
Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234
(1977)]. On the basis of the information that you provided, it
does not appear that the records would have been prepared solely
for litigation.

As suggested earlier, as a "data subject", I believe that
you
generally enjoy rights of access to records about yourself.
However, insofar as the records pertain to or identify others,
there may be privacy considerations applicable to them. To the
extent that the records identify others, §96(1) of the Personal
Privacy Protection Law states that "No agency may disclose any
record or personal information", except in conjunction with a
series of exceptions that follow. One of those exceptions,
§96(1)(c), involves a case in which a record is "subject to
article
six of this chapter [the Freedom of Information Law], unless
disclosure of such information would constitute an unwarranted
invasion of personal privacy as defined in paragraph (a) of
subdivision two of section eighty-nine of this chapter". Section
89(2-a) of the Freedom of Information Law states that "Nothing
in
this article shall permit disclosure which constitutes an
unwarranted invasion of personal privacy as defined in subdivision
two of this section if such disclosure is prohibited under section
ninety-six of this chapter". Consequently, if a state agency
cannot disclose records pursuant to §96 of the Personal Protection
Law, it is precluded from disclosing under the Freedom of
Information Law; alternatively, if disclosure of a record would not
constitute an unwarranted invasion of personal privacy and if the
record is available under the Freedom of Information Law, it may be
disclosed under §96(1)(c).
It is clear that the identity of the complainant is known to
you, for you referred to her by name in your letter to Mr.
Menendez. Nevertheless, depending upon the contents of those
portions of the records identifiable to her, disclosure might
constitute an unwarranted invasion of her privacy. To that extent,
I believe that the Agency would have the ability to make
appropriate redactions.

In sum, I believe that the records sought must be disclosed to
you pursuant to the Personal Privacy Protection Law, subject to the
qualifications discussed in the preceding commentary pertaining to
the possibility that §95(6)(d) might enable the Agency to withhold
some elements of the documentation, as well as the ability to
redact information identifiable to the complainant the disclosure
of which would constitute an unwarranted invasion of privacy.

A copy of this opinion will be forwarded to Mr. Menendez.
I hope that I have been of assistance.